Scalia: Judicial activism helped make Holocaust possible

U.S. Supreme Court Justice Antonin Scalia was not of a mind to hold himself back, witness the title to his weekend talk to the Utah State Bar Association’s meeting in Colorado: “Mullahs of the West: Judges as Moral Arbiters.”

The justice, known for his remarks about “homosexual sodomy” and likening the Voting Rights Act to “perpetuation of racial entitlements,” seemed to say that judicial activism was one cause that took Germany down the road to the Holocaust. According to the Aspen Times:

U.S. Supreme Court Justice Antonin “Nino” Scalia has described Voting Rights Act as a “racial entitlement”

“Scalia opened his talk with a reference to teh Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930′s was that judges began to interpret the law in ways that “reflected the spirit of the age.”

“When judges accept this sort of moral authority, as Scalia claims they are doing now in the U.S., they get themselves and society in trouble.”

Sclaia was not likening colleague Justice Anthony Kennedy to Roland Freisler, the hanging chief judge of the Peoples Court.

Still, Scalia vociferously dissented against Kennedy’s 2003 ruling in Lawrence vs. Texas that threw out states’ anti-sodomy laws, as well as the Kennedy ruling last month that overturned key provisions of the 1996 anti-gay Defense of Marriage Act. In his Lawrence ruling, Scalia defended “the moral opprobrium that has traditionally been attached to homosexual conduct.”

In his Aspen talk, Scalia asked: “Who in a democratic society should have the power to determine the government’s view of what natural law is?” In an open democratic society, the people can debate these issues.”

Instead of courts ruling, reported the Aspen Times, Scalia said society should set its own moral standards. He noted that the Supreme Court was never asked to rule on a woman’s right to vote. Political pressure brought about a constitutional amendment that settled the issue.

“I’m not happy about the intrusion of politics into the judicial appointment process,” Scalia argued. “If you’re in a system where the judges do the constant draftsman’s work, I think you have to accept the politicization of the appointment and confirmation process.”

Scalia, 78, has become increasingly outspoken. In a speech last fall to the American Enterprise Institute, he talked about how “easy” and a “piece of cake” it was to rule on certain issues, for example: “Homosexual sodomy, come on. For 200 years it was criminal in every state.”

He answered a student’s question, after a Princeton University speech, by saying, “If we cannot have moral feeling against homosexuality, can we have it against murder? Can we have it against other things?”

Scalia hs found his views challenged, of late, by President Obama’s two appointees to the high court, Justices Elana Kagan and